9911796707
TMI Blog2002 (11) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant are engaged in the manufacture of Hybrid Seeds a non excisable product and also engaged in the manufacture of cotton bags falling under CSH No. 6305.20 and pesticidal chemical slurry falling under CSH No. 3808.10 of the Central Excise Tariff Act, 1985. The Assistant Commissioner, Nanded Dn. issued two SCNs dated 10-12-2001 and 23-4-2002. It has been alleged in the said SCNs that for manufacture of the pesticidal chemical slurry the appellants are purchasing technical grade chemicals such as Apron 35, W.S. Dithene M-15, Malathion, Subeej pesticide, Thiram, Vitavax, Gaucho, etc., from the manufacturers/dealers and unloading the same in their factory at Jalna. These Technical grade chemicals cannot be used as it is. From th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of another goods, inter alia, in application Chapter Note 2 to Chapter 38 of the Schedule. He states that the appellant are acquiring duty paid insecticides, or pesticides, in different forms covered under the same Chapter sub-Heading 3808.10 of the Schedule, admixing them and adding water. Thereafter, these are captively used for application on seeds to prevent development of fungus and bacteria. Accordingly, reading into the provisions of Chapter Note 2 also such admixture of insecticides or pesticides and addition of water would not be squarely covered for manufacture within this Chapter Note. This Note only states that addition of chemicals and inert carriers to pesticide chemicals will amount to manufacture. Accordingly, it is the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would be irrelevant and the marketability of a manufactured item needs to be determined on its commercial acceptance as a product in the market. 5. Therefore, in the present case, in order to establish excisability of the product captively manufactured and used within the appellants unit, it was incumbent on the authority to have established its marketability. The same cannot be presumed to exist only on the ground that a product distinct from the input materials has merged and in application of the deeming provision constitutes 'manufacture', when there is no evidence that this product is commercially known in the market, either on sale by the appellant or any other manufacturer. 6. Appellants case is also that without prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been adduced by the department to sustain the finding that the subject slurry has a commercial acceptability in the market as a distinct product, either marketed by the appellant or any other manufacturer. Marketability of a product is an essential criteria for its dutiability and the law is well established on this subject by the decisions of the Tribunal and the courts of law. The cited decision of Supreme Court in the case of Sonic Electrochem (P) Ltd. is also supporting the appellants claim that this is to be determined on the basis of commercial identity of the article known to the market. In the present case, there is no evidence is adduced to establish that the resultant product on admixture acquires commercial identity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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